Public Voting
Earmarks shall be abolished by requiring that Congress shall not pass any law without a vote, and all votes are to be public, recorded, and published.

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[29.5]

No Pigeonholing
One-third of the members of each House shall have the right to have a vote by their House on any Bill whether in committee or not.

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[29.6]

Timely Budgets
Annual budgets will be approved in a timely manner and, if not, all of the then-elected members of Congress shall not be qualified to hold elective office after the expiration of their terms.

Super Majority
A 60 percent vote in both Houses is necessary to raise or spend money.

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[30.2]

No Retroactivity
Congress shall have no power to pass any retroactive Bill unless approved by a two-thirds vote of both Houses except Congress shall never impose taxes retroactively.

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[30.3]

Tax Changes Prospective
There shall be no increase in the income tax before January 1 of the year following adoption of the increase without a two-thirds vote of both Houses, and there shall be no income tax for a stated term.

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[30.4]

Limit Mandates
No future mandate shall be imposed upon the States or subdivisions thereof without their consent.

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[30.5]

Campaign Freedom
There shall be no restrictions on the amount of political contributions or expenditures made in connection with federal elections or issues as long as they are promptly disclosed.

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[30.6]

Preamble for All Laws
Every law shall contain a declaration of purpose, a statement of the constitutional power relied on, and other statements helpful to citizens.

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[30.7]

No State Bailouts
Congress shall pass no law to purchase (i.e. bail out States) State debts unless the purchase is ratable based on population for all States or unless approved by a two-thirds vote of both Houses.

President Answers Questions
Upon request of the House of Representatives, the President shall appear before it while in session to answer questions but not more often than weekly and for not more than forty minutes for each appearance.

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Amendment 33 Voting

Proposal

Vote

[33.1]

Constitutional Amendments by States
A majority of State legislatures shall have the right to submit amendments to the Constitution to the States for ratification by three-fourths of the States.

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[33.2]

Save the Bill of Rights
Amendments to the Bill of Rights or to the Thirteenth, Fourteenth, and Fifteenth Amendments shall not be authorized without unanimous approval of all the States.

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Amendment 34 Voting

Proposal

Vote

[34.1]

Voting Tax
As a condition to the right to vote in a federal election, every citizen shall annually pay an equal tax sufficient to raise revenues necessary to operate Congress, provided the tax shall be $10 per year until changed and never more than the cost of one-fourth of one troy ounce o ... Read More

More Citizen Standing
Every citizen shall have standing in court to seek the meaning of the Constitution or to challenge the constitutionality or validity of any federal law or regulation or to seek a declaration of the meaning thereof.

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[36.3]

Mens Rea Required
No person shall be guilty of a federal crime unless the person’s mens rea has been proved beyond a reasonable doubt.

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[36.4]

No Severance Clause
If any part of a Bill that becomes Law is determined to be unconstitutional, then the whole Law shall be unconstitutional.

Limit Congressional Power
The “general Welfare” clause as used in the preamble of the Constitution does not grant Congress any power and as used in Article I § 8 grants power exercisable only by at least a two thirds-vote of both Houses.

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[36.7]

Limit Executive Privilege
Doubts as to whether the President can lawfully assert executive privilege on any matter to avoid releasing information to Congress shall be resolved against the President.

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28 Line-Item Veto

Summary:

The President shall have a line-item veto but only on appropriation bills.

Proposed Language:

Every Bill not an appropriation Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States. If he approves he shall sign it, but if not he shall return it, with his Objections to the House in which it shall have originated, which shall enter the Objections at large on its Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. Every appropriation Bill which shall have passed the House of Representatives and the Senate shall, before it becomes Law, be presented to the President of the United States; if he approves he shall sign it, but if he approves it in part, he shall sign it as to the sections approved and shall return the Bill with the parts not approved with his Objections to that House in which it shall have originated which shall thereupon proceed in the manner provided for above with respect to Bills which are not appropriation Bills. If the parts objected to are not approved as there provided, such parts shall not be Law but the parts approved shall be Law.

Commentary:

Congress routinely includes in spending bills appropriations that the President would prefer not to spend. However, the general consensus is that he must accept all of the bill as law or none of it. The result is that he must compare the overall benefits of the Bill to its disadvantages before he signs. If the President signs the Bill, he is duty bound to spend the funds he would prefer not to spend. The overall consequence is that the President is denied the opportunity to manage the financial affairs of the nation in the best way he can. If the President decides to veto the bill, Congress by a two thirds vote can always override the President and force the spending.

In Denton v. City of New York, 524 U.S. 417 (1998), the Supreme Court said the Line Item Veto Act passed by Congress was not constitutional since it violated the procedures required by the Constitution to pass laws.

Most people confronted with this issue favor a line item veto as a check on Congress prompted by lack of confidence that Congress will act wisely and, accordingly, we have submitted it for consideration by the States. This proposed Amendment in effect requires a two thirds vote of Congress if it wants to preserve as law those items in an appropriation Bill objected to by the President.

29.1 Committee Term Limits

Summary:

Membership on committees of the House and Senate is limited to four terms in the House and two terms in the Senate.

Proposed Language:

No member of any committee of Congress shall serve on such committee longer than four terms in the House and two terms in the Senate as those terms are defined in Sections 2 and 3 of Article I of the Constitution.

Commentary:

Many people have complained about the powers of congressional committees (and their entrenched staff), particularly those whose chairmen have dominated their proceedings for many years. While other changes to the Constitution we have recommended may moot this complaint, we are offering this proposal to ensure that committee power is diminished.

29.2 Equity Required

Summary:

Congress shall equitably treat government employees and retired congressmen and senators if they lose their health and other pension benefits by amendment to the Constitution.

Proposed Language:

Any existing Law in conflict with the Twenty Ninth Amendment shall be void except any Law in conflict with Clause 10 of the Thirtieth Amendment shall not be void until two years after its adoption during which time Congress shall extinguish all prohibited benefits and pay or promise to pay the present value thereof determined actuarially using a discount rate of 10 percent per annum, as of the date of such adoption, to those whose benefits are terminated thereby, with any deferred payment made without interest on such terms and conditions and over such time as Congress shall establish.

Commentary:

As a matter of fairness, we have provided in this proposed amendment a method for dealing equitably with members of Congress and federal employees who have relied on existing law for their retirement. This method gives Congress two years from the adoption of proposed Amendment 30.10 to calculate the present value of the future benefits of these persons and to thereafter pay such persons in cash or over time as Congress shall determine. Some may say the ten percent discount rate applied to the actuarial determination is too high. However, it is close to long-term yields in the stock market. These congressional and federal beneficiaries of special programs should not be heard to complain based upon short-term economic conditions for which they are largely responsible.

29.3 Congressional Compensation

Summary:

Congressional compensation is to be determined by a committee separate from Congress.

Proposed Language:

Direct and indirect compensation for members of Congress shall be equal. Compensation for members of Congress and their staff shall be established every four years beginning on the first day of the second calendar year following the effective date of the adoption of this amendment by a majority vote of a committee of six, two appointed by Congress, two by the President, and two by a majority vote of the governors of the several States, one each for a term of two years and one each for a term of four years with appointments made in like manner every two years for a term of four years. Committee deadlocks lasting more than thirty days shall be resolved by the President upon application of any committee member. Such committee shall have the power to appropriate from the federal treasury such funds as shall be required to perform its duties including the compensation and expenses of the members thereof which shall be of public record and never exceed for a committee member the amount established for a member of Congress proportionally reduced to his time of actual service. Appropriations to cover all other costs of operating Congress are reserved to Congress.

Commentary:

Congressional compensation is a favorite political issue. We even have Amendment 27 to the Constitution which prohibits members of Congress from varying their pay until a congressional election has intervened. No one wants to be seen as increasing his pay while a member of Congress, thereby also being seen as using his political power to pad his pocketbook. The political fear that this reluctance imposes has generated consequences significantly more adverse than a congressman increasing his pay. It has deterred from the ranks of Congress those who cannot afford to serve because of low salaries. Second, it has generated an incentive in congressmen to find other ways, sometimes devious and criminal, to increase their remuneration. For example, we find as late as 2011 that Congress does not have restrictions on the ability of its members to take advantage of information unique to them in buying and selling stocks. Third, we hear stories about persons going into Congress as ordinary people but coming out as millionaires. Lastly, we generate a climate where wealthy patricians become the unique class of persons able to run and serve in Congress. There are likely many more arguments against the current system by which Congress compensates itself.

We believe the system can be much improved by establishing a separate committee to compensate Congress and to make it invulnerable to any influence by Congress. In all likelihood, the committee would increase congressional pay to provide incentives for increasing the quality and intelligence of better leaders in Washington, D.C.

It is often said that former Minnesota Senator Hubert Humphrey was the model of a public servant because he came out of Congress after many years of service with no more than he had when he went in. This should be the standard of a person whose fidelity to the country is his top priority.

29.4 Public Voting

Summary:

Earmarks shall be abolished by requiring that Congress shall not pass any law without a vote, and all votes are to be public, recorded, and published.

Proposed Language:

All Bills and each and every provision thereof or amendment thereto shall be passed by Congress as provided in the Constitution by votes, and all votes shall be public, be recorded, and be published by voter.

Commentary:

Earmarks are a form of special legislation — that is, the legislation benefits a few people but not the people generally. They are frequently approved in conference committee to avoid debate. In effect, Congress directs that a certain amount of an agency’s budget be spent on specific projects thereby removing discretion over the funds from others. Earmarks are synonymous with what we call “pork barrel projects.”

State constitutions and by implication the U.S. Constitution prohibit special legislation. Special legislation is, in effect, conferring legislative favors on some and not on others. The courts have consistently validated what appears to be special legislation if the beneficiaries fall within a classification deemed reasonable. Thus, for example, in Colorado commercial property is taxed at a higher rate than residential property because the classification of the two is deemed reasonable.

Earmarks are a classic form of special legislation by which Congress confers favors on its members in exchange for votes. We have all heard about the “bridge to nowhere” in Alaska. Most members of Congress are publicly against earmarks, but they continue to approve them unabashedly. Through legislative sleight of hand, earmarks are permitted because voting on them is usually obscured to shield our representatives from accountability.

Would a constitutional amendment opposing special legislation solve the problem? Although such a rule might solve the problem, it would also lead to ingenious classification strategies and result in considerable litigation. For that reason, we have elected to remedy this problem, not with a prohibition on special legislation, but with a requirement that there be a publicly recorded vote on every appropriation bill. In this fashion, members of Congress who oppose earmarks can offer amendments to delete them and force a vote on the amendment which, in due course, will allow citizens the opportunity to vote against persons who say they oppose earmarks but yet vote for them. Also, if the President has a line-item veto, he is in a position to be rid of them and acts at his political peril by approving them.

Voting discipline is another way of eliminating earmarks. Congress currently passes laws by different means including a show of hands, voice votes and roll call votes. The roll call vote is the only method by which a member of Congress has his vote for or against a measure officially recorded and published. In the old days, other means of voting were appropriate because of the time required to vote. However, today, with the electronic and technological improvements that have occurred, voting on any issue is as simple as pushing a button. By requiring votes on all measures, members of Congress lose the ability to hide behind the shield of an unaccountable vote or avoid taking the position on a matter deemed important enough to be voted upon by Congress. People were not elected to Congress to vote “present” but to be leaders for their country and their State and to take positions. Those positions should be known and recorded so that we have a healthy government.

29.5 No Pigeonholing

Summary:

One-third of the members of each House shall have the right to have a vote by their House on any Bill whether in committee or not.

Proposed Language:

One-third of the members of each House shall have the right to have a vote by their House on any Bill whether in committee or not.

Commentary:

It is common knowledge that the rules of both the House and the Senate give authority to certain individuals to prevent a Bill from being presented for a vote by the members of either the House or the Senate. In many cases, there are likely sound political reasons for such rule but, in all cases, this rule means that a particular Bill is held in committee and will not be released until somebody else supplies an undesirable quid pro quo.

In order to put the country’s interest first, it seems appropriate that, if one third of the members of either House determine that a Bill should be voted on by the whole house, regardless of whether the Bill has been reported by the committee, then they can act by this rule to force the Bill from the committee and present it for a vote by their House.

29.6 Timely Budgets

Summary:

Annual budgets will be approved in a timely manner and, if not, all of the then-elected members of Congress shall not be qualified to hold elective office after the expiration of their terms.

Proposed Language:

Both Houses shall agree on a budget for the succeeding year no later than October 1 of the prior year, failing which none of the members thereof shall be qualified to hold elective office in Congress after the expiration of his or her then existing term of office. All future budgets shall be compared to the current year’s budget on both a cash and accrual basis, and such comparison shall be part of the budget.

Commentary:

Nothing invites more disrespect for Congress than its inability to manage the country’s financial affairs. This Amendment will penalize federally elected representatives and senators severely by forbidding all of them from running for public office in the future in the event they fail to adopt budgets meaningful to our citizens in a timely manner.

The proposed Amendment will also require that budgets be compared to the prior year’s budget on both a cash and accrual basis which will give more information to citizens and allow them to know whether liabilities are building up on an accrual basis in the management of the federal government.

29.7 Emergency Bills

Summary:

No non-emergency Bill or amendment shall be tacked onto an emergency Bill.

Proposed Language:

No emergency Appropriation Bill whose purpose is to prevent or mitigate or respond to a loss of life or property or a threat to national security shall be valid if it contains any non-emergency spending authorization.

Commentary:

It is a common practice when an emergency bill is required to help certain of our beleaguered citizens with the consequences of weather and other perils for representatives and senators to tack onto that bill their favorite program, deal or pork barrel project. This amendment will prevent that practice and limit emergency bills to matters related to the emergency.

30.1 Super Majority

Summary:

A 60 percent vote in both Houses is necessary to raise or spend money.

Proposed Language:

Congress shall have no power to pass any Bill for raising revenue or for appropriating money unless it is approved by three-fifths of both Houses.

Commentary:

One of the biggest weaknesses of a democracy is the tyranny of the majority. Our Constitution attempted to guard against the tyranny of the majority by creating a republican form of government. This was based upon the assumption that elected representatives would work together to pursue goals that are in the best interest of the country. Yet, the record shows that most elected leaders are more interested in continuing in power or advancing their personal ambitions than in pursuing the interests of the country. Any survey of what has occurred in America illustrates that this is exactly what has happened.

Politicians putting their own interests ahead of those of the country has resulted in a highly polarized system of government pursuant to which the victor at the polls, even though achieving victory by only a few percentage points, claims a mandate of support for the particular platform which formed the basis for his or her re-election. The polarization that has occurred from this phenomenon has made it impossible for the political parties to work together and has generated an opportunity for the minority to make claims that it would never make if it were in power and accountable for the consequences of its positions.

We have to remember that politicians advocate policies that they represent to be in the public interest but which at the same time assure their reelection. These policies, as we have discerned in these commentaries, generate a plethora of unintended consequences. Policy making is a hazardous business and should be cautiously exercised.

The illusion that the victor at the polls represents the country is illustrated by voting data over the past fifty years as recorded by Congress. We have assembled this data which illustrate that not a single elected President, representative or senator in the last fifty years has received a majority of the votes of the citizens of the United States who are qualified to vote.

While it is lamentable that many Americans simply do not register to vote or, if registered, do not vote, it cannot be accepted as true that those who do vote represent the majority or that the successful candidate has a mandate from the majority. Because of this, every elected representative becomes a fiduciary not only for those who have chosen not to vote but also for the young who are not yet of voting age who represent an estimated 24 percent of the citizen population.

In order to honor the fiduciary obligation associated with the young and those who do not vote, all elected representatives have a duty to consider not only their own platforms but the platforms that all the people would find acceptable and in their short-term and long-term best interests. In order to do this, we believe a 60 percent vote on taxing and appropriation bills is an essential reminder that a majority of elected representatives do not have an unaccountable power and represent not just their constituency but all Americans. In like manner, it requires that minorities not be intransient in their opposition to the majority in power but work together. In fact, a 60 percent vote requirement will likely foster minority parties that, upon forming coalitions with other parties, will give minorities more influence and increase overall accountability.

Proactive harmony is a recipe for a more holistic view of American interests and honors the gift from Hermes as related by Protagoras in Plato’s writings:

Whenever they gathered into groups [early human beings] would do wrong to each other because they did not yet have the knowledge of how to form society. As a result they would scatter again and perish. And so Zeus, fearing that our whole species would be wiped out, sent Hermes to bring reverence and justice to human beings, in order that these two would adorn society and bind people together in friendship. Protagoras, Plato’s Protagoras, 322 c.

30.1 No Special Benefits

Summary:

Congress shall have no retirement, health, or other pension benefit law for itself or federal employees, except the military, unless the law applies to everyone.

Proposed Language:

Congress shall have no power to pass any Bill conferring a retirement, health, pension, or other benefit upon itself or its past, present, or future members or any employee of the United States or agency thereof except the military unless such Bill applies generally to all other citizens.

Commentary:

We begin this amendment with the comment that the most important duty our federal government has under the Constitution is to provide for the general defense of this nation. Although the defense of the nation can take many forms including diplomacy, the use of the military is the most important. Those who risk and lose their lives in the defense of our nation are entitled to be treated separately and provided with such benefits as Congress deems appropriate.

While the military is a special case, we see no reason that members of Congress or federal employees should have a special safety net because they work for the federal government. In most cases, their safety nets cost more than those available to workers in the private sector. The effect is to pass on costs to later generations to cover these safety nets for retired federal workers.

Proper pay-as-you-go business requires Congress to pay federal workers a fair wage with sufficient funds to defray any health or pension benefit they may wish to have and to make them subject to the same laws crafted by Congress to benefit all Americans.

As a matter of fairness we have provided in Amendment 29.2 a method for dealing equitably with members of Congress and federal employees who have relied on existing law for their retirement. This method gives Congress two years from the adoption of this Amendment to calculate the present value of the future benefits of these persons and to thereafter pay such persons in cash or over time as Congress shall determine.

30.11 No Presidential Spending Authority

Summary:

Congress shall not delegate spending authority to the President.

Proposed Language:

Congress shall have no power to pass any Bill delegating to the President the authority to take any action subject to Congress’s disapproval or to increase spending authority related to any government obligations the budget authority for which has not been provided in advance, unless such delegation is necessary and accompanied by clearly defined and ascertainable standards.

Commentary:

Political gamesmanship played by the President and the Congress offends the sensibilities of our citizens. Thus, for example, no senator or congressman wants to be seen as voting to increase the debt limit because, generally speaking, most Americans are against that. The President argues for increases because the government cannot continue to operate without those increases and cites positions scaring every person who is in any way connected directly or indirectly to a government program. Congress, on the other hand, does not have the courage to find the almost impossible solution to this problem. Rather, Congress refuses to increase the debt limit unless it receives concessions that it believes most people would find reasonable. We can safely say that, if Congress fixed this nation’s spending problem, most of its members would not be reelected. The result is Congress will not fix the problem, preferring to rely on inflation to do its job and then blame someone else for the inflation.

This phenomenon occurred in 2011. The result was the Budget Control Act of 2011, which allowed the President to increase the debt by $1.2 trillion upon fifteen days’ notice unless Congress objected. Since it would be impossible today to obtain a veto-proof resolution of objection, this allowed many senators and congressman to vote against the debt increase for political purposes back home without accepting responsibility for that debt increase. The Founding Fathers would never have allowed such a delegation of financial authority from the Congress to the President and it should be prohibited in the future in order to make Congress responsible and accountable for the financial operations of this country. The other problem is that there is nothing citizens can do to challenge this unconstitutional delegation because the courts will say they have no standing. See Amendment 36.2 Commentary. Further, it is likely unconstitutional for a majority of Congress to pass a law with a stipulation that the law can only be undone by a two thirds vote.

The spending authority of our nation is one of the most solemn duties Congress has. Because of the Fourteenth Amendment, the United States is forbidden to dishonor “the validity of the public debt … authorized by law.” Yet, Congress delegates to the executive branch (the Secretary of the Treasury) the authority to borrow money without Congressional approval, with the only discipline being the debt limit Congress has approved. The Secretary of the Treasury cannot borrow money in excess of this limit. Until 1917, Congress voted on each and every new issuance of debt and specified the amount and terms of the debt. We have not recommended that Congress renew the practice before 1917 believing tighter control over spending or the debt limit will be sufficient.

Whether Congress can delegate legislative authority to the President has been addressed by the Supreme Court. The general rule is that delegation is unconstitutional if there is a lack of standards in the duties conferred upon the executive agency. Thus, the search for adequate standards to restrict administrative discretion in the executive branch lies at the heart of every delegation challenge. The essential inquiry is whether the specified guidance “sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.” In this respect, the courts will look at the totality of the standards, definitions, contexts and prior practices to see whether they provide an adequate intelligible principle to guide and confine administrative decision making.

The Supreme Court has stated that a constitutional power implies a power of delegation of authority sufficient to effect its purposes, that appropriation power is not functionally distinguishable from other powers that have been delegated by Congress, and that many delegations of authority have been recognized in the areas of immigration, federal crime, war, fixing prices for commodities and rents, determining when, if ever, a law should take effect, and others. The necessity of delegation is sometimes discussed, but there is no case finding an unconstitutional delegation based on a lack of necessity.

Illustrative of the problem is the Budget Control Act of 2011 discussed above, which is equivalent to contingent legislation. The contingency was that under certain circumstances the President could increase the debt limit by $1.2 trillion. We have no objection to reasonable and proper delegation of legislative authority to the executive branch and its agencies. However, the delegation of authority to increase the national debt by $1.2 trillion is believed by most people to be outside the circle of acceptable delegation. The sole purpose of the Budget Control Act of 2011 was to mislead the American people into believing that the issue of the size of the spending limit would be reconsidered by the Congress and acted on in the usual manner. Yet, the legislation was really structured for political purposes having nothing to do with the intelligent management of the nation but rather giving certain elected officials a chance to go on record against an increase when they were really for it.

The notion that the President can have authority subject to the disapproval of Congress is a legally unchallengeable act (except by a congressman). It is an unconstitutional trick essentially requiring a two thirds vote (veto-proof act) to undo the debt increase even though our Constitution requires only a majority vote to pass the law.

30.2 No Retroactivity

Summary:

Congress shall have no power to pass any retroactive Bill unless approved by a two-thirds vote of both Houses except Congress shall never impose taxes retroactively.

Proposed Language:

Congress shall pass no retroactive Bills, civil or criminal, without a two-thirds vote and without an express statement that retroactivity is in the public interest, does not take or impair vested rights, and does not create new obligations or impose new duties prior to the effective date of the Bill, except Congress shall never impose any tax retroactively.

Commentary:

The notion that a law could somehow apply retroactively has been universally condemned and is currently covered by Article I, § 10 of the Constitution (“No Bill of Attainder or ex post facto law shall be passed.”). States are prohibited from passing an “ex post facto law, or law impairing the obligation of Contracts …”. James Madison argued that retroactive legislation offered special opportunities for the powerful to obtain special and improper benefits. However, the Supreme Court has interpreted these constitutional provisions to apply only to penal litigation.

In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme Court cited an earlier case that “Congressional enactments and administrative rules will not be considered to have retroactive effect unless their language requires this result.” The court said the Constitution only prohibited penal retroactivity and therefore permitted other types of retroactivity when congressional intent was clear.

Although it may be appropriate in some cases to have retroactive laws (emergencies or to correct clear mistakes), they should certainly not be passed unless a super majority of Congress expressly recognizes why they are important. For this reason a two thirds vote has been specified as required to achieve the level of unanimity required to meet the expectations of governmental fair dealing with the public.

With respect to taxation, Congress has taken the position that once a Bill has been filed and the content of the law becomes known, it is fair to pass the law at a later date but make it effective at an earlier date. Most people disapprove of this practice.

Every day people make decisions and take actions according to the law as it then exists. The idea that Congress can somehow change the mix of facts with a retroactive law and thereby impose a greater burden on the decision maker than existed at the time of the decision is morally wrong. Some persons will take the risk. Other persons will do nothing until the matter is settled in Congress. This delay interdicts economic growth in numerous and unforeseeable ways not predictable by anyone, including Congress.

If Congress wants to raise taxes, it should get about it quickly and efficiently. It should not pull the rug out from underneath the people who make decisions on existing law before a new law is passed.

30.3 Tax Changes Prospective

Summary:

There shall be no increase in the income tax before January 1 of the year following adoption of the increase without a two-thirds vote of both Houses, and there shall be no income tax for a stated term.

Proposed Language:

Congress shall have no power to pass any Bill using its power under the Sixteenth Amendment which is effective before the first day of the calendar year following its enactment without a two-thirds vote of both Houses and no such Bill shall ever be made subject to a stated term.

Commentary:

Our comments [Amendment 30.2 Commentary] with respect to retroactive tax bills are somewhat applicable to this proposed amendment. Since most people do their planning on a yearly basis, it is fair that they should be able to know in advance what the laws will be for a particular year, most especially tax laws that have such a significant influence on economic planning. It stands to reason that if Congress wants to change the income tax laws in a particular year, it should not make those laws effective until the first of the following year. Yet, Congress in enacting general revenue statutes, has almost without exception given such laws an effective date prior to the date of enactment. The Supreme Court has authorized this practice, holding that it does not violate due process if reasonable. U.S. v. Darusmont, 449 U.S. 292 (1981). Our lives and decisions should not be made to depend on whether judges think retroactive tax laws are reasonable. The Supreme Court has also held that treasury regulations may be retroactively applied unless doing so constitutes an abuse of discretion. Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184 (1957).

In addition, Congress should not be allowed to make income tax laws for a stated term. The reason is that business planners have no idea what will occur at the expiration of the term. This uncertainty means that they must either assume the risk of a favorable change at the end of the term or go to the sidelines and wait for an answer. It is risk enough that people make their economic decisions knowing that Congress can pass a law at any time that may prove their decisions to have been incorrect. To compound that risk with other risks, such as taxes for a stated term, will have nothing but a deleterious effect upon our economy and ameliorative effect on the ability of elected representatives to shirk their responsibility for political reasons.

30.4 Limit Mandates

Summary:

No future mandate shall be imposed upon the States or subdivisions thereof without their consent.

Proposed Language:

Congress shall have no power, after the adoption of this amendment, to impose an enforceable duty upon State, local, or tribal governments or entities by which they do business without their written consent or to discriminate against them in the provision of federal assistance, financial or otherwise, because they refuse to consent.

Commentary:

When a citizen queries elected leaders from states down to county commissioners, he will find one of their greatest objections is the mandates imposed upon them by the federal government. These mandates require local governments to spend money to achieve policy goals established by Congress without their consent. Not only is this unfair as a practical matter, but it also denies the people the diversity of decision making intended by federalism, prevents the states from planning themselves and denies them the ability to predict the financial consequences of their own decisions.

Congress itself has recognized this problem by adopting the Unfunded Mandates Reform Act of 1995, designed to end the imposition, in the absence of full consideration by Congress, of federal mandates on State governments without adequate federal funding in a manner that displaces other state governmental priorities. This law has been helpful (see Printz v. United States, 521 U.S. 898 (1997)), though we are reminded that Congress could repeal it at any time. This insult to the power and responsibility of state and local governments needs to be brought to an end. Because there currently exist mandates of the sort to be prohibited, we have provided that the amendment be limited to future mandates. Existing mandates can be continued or repealed as determined by Congress.

30.5 Campaign Freedom

Summary:

There shall be no restrictions on the amount of political contributions or expenditures made in connection with federal elections or issues as long as they are promptly disclosed.

Proposed Language:

Congress shall have no power to pass any Bill limiting the amount of contributions by any United States domiciliary corporation or organization or citizen to any corporation, organization, or person for political purposes involving federal policy or federal candidates nor limiting the expenditures of any of the foregoing as long as both the contributions and expenditures are fully and promptly disclosed to the public by the most public and technological means available for such purpose.

Commentary:

The Problem.

Few issues provoke as much controversy as the money spent in politics. Many say, “Money in politics is bad.” This mantra is repeated by many, both conservatives and liberals, Republicans and Democrats. When the majority believes the mantra, it ends up with laws restricting what messengers with undesirable messages can do. The very existence of these laws implies that money in politics is bad without any real discussion over why money in politics is bad and, even if so, whether the available methods of regulating the money can control the harm without undermining the values of a democratic society governed on the premise that each individual voter knows best and can filter out bad messages from good messages.

No one doubts the First Amendment right of every person to voice his opinion on anything including political issues. However, as these persons combine to exercise this right, they risk opprobrium. Among those in this class are businesses which advertise, the rich who attempt to influence elections, politicians who attempt to influence elections, political action committees which attempt to influence elections, unions which attempt to influence elections, and the media which attempts to influence decision making on a broad range of issues including public policy and elections.

This opprobrium is particularly assigned to that class of persons we call “rich.” Thus, the messages of the rich are held in great suspicion along with speculation that their messages are bad and will likely lead to corruption or the appearance of corruption. Even if the objectors to the messages of the rich are right, then the question is who decides what messages are harmful or that those delivering the message should be shut down or that those hearing the messages will be unable to determine for themselves that the messages are harmful? And, what is the reason that they can censor the rich but no others or determine what subjects or viewpoints are subjects which should be legally disfavored? And who is to say that someday they will not censor a group other than the rich by finding, for example, another First Amendment exception?

So why is it that a huge segment of society fears the message of the rich but not the messages of other groups? For example, no one questions the right of the media to broadcast its several messages, even though media people are known to be politically biased along with everyone else and have the power to hire those emissaries who will reinforce their views. Why is it that people oppose rich people broadcasting their message, whether singly or in association with others, and not rich corporations in the media business? The reason cannot be that they disagree with the messages because they can vote in a manner to undermine the messages. Rather, it has to be their fear that others will improvidently agree with the messages.

Legislative Responses to Problem.

This is not a recent problem. Fifth century Greeks had major concerns that the monied interests (oligarchies) would take over if not checked. They protected themselves by limiting the power of office holders, not restricting the use of their money. Paul Woodruff in First Democracy (2005) said, “Because the Athenians wanted to curb the power of wealth, they severely restricted the powers of those who held elected office. So the representative bodies in Athens were filled not by elections, but by a lottery that drew from a large panel of citizens… such a body would be too large to bribe….” The Roman republic weakened in its latter days because of the influence of monied interests and a corresponding diminishment of the rule of law. In our country, the power of wealth is controlled by giving the vote to all citizens of lawful age. Yet, this is not deemed sufficient by a large group of Americans.

The result was that Congress enacted laws limiting the amount of contributions using the Federal Election Commission as the policeman. The Federal Election Act of 1971 (amended 1974) was ruled on by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976). There, the Supreme Court said that a candidate could spend as much of his own money as he wanted but that other people could not contribute more to his campaign than a specified amount. This gave an advantage to wealthy people running for public office. Corporations and labor unions were prohibited from making contributions. The Supreme Court justified its ruling on candidates based upon their First Amendment rights and justified the second part of its decision on a perception, not a fact, that too much money would lead to corruption and that it was a valid governmental interest to prevent corruption or the appearance of corruption. The court later extended this governmental interest to preventing distortion caused by wealth which has “little or no correlation to the public’s support for the corporation’s political ideas.”

In 2002, Congress passed amendments to the law barring corporations and unions from making independent electioneering expenditures. In 2010 the Supreme Court in Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), ruled that corporations were allowed to make independent political expenditures without limitation. In doing so, the court, relying in part on Federalist No. 10 (Madison) (“destroying the liberty [of some factions is] worse than the disease”), concluded that independent corporate expenditure was a free speech right and did not give rise to corruption or its appearance and that the distortion argument was likewise unfounded. The court found there was no rational support for the view that media corporations should be exempt from restrictions imposed on other corporations. The court noted that “Speech is an essential mechanism of democracy” and that the First Amendment “stands against unjust attempts to disfavor certain subjects or viewpoints.” Unmentioned was that when there were no restrictions at all, when there were no disclosure requirements, there were no celebrated cases of fraud or the appearance of fraud or wealth created distortion. Today, potential fraud and corruption seem to be the primary argument for why government regulation should apply and are the main reasons given in most commentaries on why Citizens United is bad law. Yet, fraud and corruption have always been illegal and restrictions on campaign spending laws are not needed to stop it. The fact is no one knows whether a policy of unlimited contributions would be good or bad.

In Western Tradition Partnership, Inc. v. Attorney General, 271 P.3d 1 (Mont. 2011), the Montana supreme court reversed a lower court which found that Montana’s statutory restriction on corporate donations was unconstitutional. The relevant issues were succinctly raised by the court’s comments:

Citizens United was a case decided upon its facts, and involved “unique and complex” rules that affected 71 distinct entities and included separate rule for 33 different types of speech in Federal elections. Since 1975, the Federal Election Commission adopted 568 pages of regulations, 1,278 pages of explanatory materials, and 1,771 advisory opinions to implement and enforce the Federal law. The FEC adopted a two-part, 11-factor test in response to the holding in a single Supreme Court decision. If parties want to avoid litigation and possible penalties they must either refrain from political speech or seek an advisory opinion. All of this, the Supreme Court found, allows the FEC to “select what political speech is safe for public consumption by applying ambiguous tests.” Citizens United, 130 S.Ct. at 895-96. The Court determined that the law was “an outright ban, backed by criminal sanctions.” Citizens United, 130 S.Ct. at 897.

***

While Citizens United was decided under its facts or lack of facts, it applied the long-standing rule that restrictions upon speech are not per se unlawful, but rather may be upheld if the government demonstrates a sufficiently strong interest. Citizens United, 130 S.Ct. at 898.

After analyzing the facts in Montana, the Montana Supreme Court found that the Montana government had demonstrated a “sufficiently strong interest” to justify its statute. It is somewhat disheartening to think that a corporation, to protect its First Amendment rights, must litigate amidst a morass of rules to determine its rights when, in the last analysis, some one or few individuals will have the right to decide whether a “sufficiently strong interest” has been established by the government. The Supreme Court agreed and reversed the Montana ruling in one page in American Tradition Partnership, Inc. v. Bullock, 132 S.Ct. 2490 (June 12, 2012).

Apart from the corruption or appearance of corruption arguments, many people believe that it is not fair that wealthy people should have a huge advantage in the election process because of their wealth. They say that the “playing field” should be leveled and that lesser known persons of modest means should be given a fair chance. The result of this sentiment has resulted in the so-called “clean election laws” which have been passed in a number of states. These laws generally provide that candidates wishing government financing can elect to receive it as long as they “qualify”, usually by petitions from a certain number of voters, agree to restrictions on expenditures and comply with other regulations. In some cases, these laws increase the amount available to publicly financed candidates based on the amount of spending done by the privately financed candidates. The Supreme Court declared portions of Arizona’s law unconstitutional in Arizona Free Enterprise Club’sFreedom Club Pact v. Bennett, 131 S.Ct. 2806 (2011), with the following opening paragraph:

Under Arizona law, candidates for state office who accept public financing can receive additional money from the State in direct response to the campaign activities of privately financed candidates and independent expenditure groups. Once a set spending limit is exceeded, a publicly financed candidate receives roughly one dollar for every dollar spent by an opposing privately financed candidate. The publicly financed candidate also receives roughly one dollar for every dollar spent by independent expenditure groups to support the privately financed candidate, or to oppose the publicly financed candidate. We hold that Arizona’s matching funds scheme substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment.

The Arizona Free Enterprise opinion reminds us (1) that the First Amendment “has its fullest and most urgent application to speech uttered during a campaign for political office”, (2) that the First Amendment does not permit a state to sacrifice speech for efficiency in the election process, (3) that equalizing the financial resources of candidates violates the First Amendment rights of those who wish to spend more and (4) that leveling the playing field, while sounding like a good thing, requires the intervention of potentially unaccountable judgments by others thereby conditioning First Amendment rights of one citizen on the judgment of another. The court also reminded us that “In a democracy, campaigning for office is not a game. It is a critically important form of speech.”

The court declared certain provisions of the Arizona statute unconstitutional because the process permitting the state to finance publicly supported candidates based upon monies contributed to privately financed candidates forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations”. The court also noted that a candidate or independent group might not spend money if the direct result of that spending was additional funding of its political adversaries, a process which would also have a chilling effect on First Amendment rights.

All of this is not to say that there is not some legislative basis available to states to give promising candidates a chance to get their name out in the public. On the other hand, one has to ask himself whether this is even necessary when someone like President Obama, who was unheard of until 2004, could in the course of four years become President of the United States.

Human Nature and the Importance of Campaign Freedom.

Apart from the law, the facts are clear. It is a feature of human nature that no matter what the law is money will show up to influence elections. This is especially true as long as people have a monetary interest in the decisions of Congress. The Supreme Court acknowledged this to be the case in Citizens United. Because of this, the existing restriction on the amount citizens can contribute to a candidate is likely unconstitutional. Candidates should not be shackled by contribution limitations in their effort to rebut claims made by independent organizations which have no such limitations under Citizens United.

One thing is clear: the efficacy of any message is a function of money. Yet, is the efficacy of a message the content of the message or the messenger? President Obama is known for having spent almost $750 million on his 2008 campaign for president. On January 1, 2008, there were 4,234 political action committees authorized by Congress to appease those who object to “big money”. These PACs are expected to spend $9.8 billion in 2012 with 57¢ of every dollar going to TV. The media, having an estimated equity value of about $1 trillion, sends out its messages on a daily basis in a form an ordinary person can hardly avoid, spending as he does at least 5 hours per day connected to the media in one form or another.

What does it say that so many favor curbs on spending in federal elections? What does it say about their confidence in democracy? Does it say that, if you don’t like the message, get rid of the messenger? Does it say that they can trust some government agency to decide what messages are good or bad or in the public interest? If they believe the electorate is not competent to filter out disinformation and messages they find unsatisfactory, is it because they do not support democracy but rather a form of government where wise people in power with access to more information will make better decisions for the electorate than it can make for itself.

Are we to assume that the average voter is incapable of resisting the persuasive content of political advertisements? You may not like big money in politics but are you willing to admit that you, a sovereign voter, are powerless to overcome its consequences? What is wrong with allowing American people to make up their own minds? If you disagree, you have to believe the average voter cannot be trusted to make up his own mind. This requires that you select some other person to make it up for him. This is the end of freedom and the best case for doing away with democracy all together. This also explains James Madison’s comment above.

We believe, as long as contributions and expenditures are disclosed promptly, that voters can deal with this information in a responsible way and that the existing layers of law and regulation serve only to obfuscate who is really behind a particular candidate. Moreover, the complexity of election rules chills the number of candidates willing to run. It is a grim observation that no person should run for federal office without a good lawyer and a good accountant. We cannot be proud that the hurdles facing candidates for federal office deny us many potentially good leaders.

We also believe the First Amendment has no favorites. We believe any form of restrictions on the ability to broadcast messages is a form of unlawful discrimination, motivated by fear of the message and not fraud or corruption which can be dealt with by more traditional means.

30.6 Preamble for All Laws

Summary:

Every law shall contain a declaration of purpose, a statement of the constitutional power relied on, and other statements helpful to citizens.

Proposed Language:

Congress shall have no power to pass any Bill unless it sets forth at the beginning thereof a declaration of the purpose thereof and the constitutional power under which it is brought, a statement that the Bill is needed for the public interest, a statement that the government can afford the Bill, a statement that the government can administer the Bill in a way people can respect, a statement of its impact on the freedoms of citizens, and a statement of its possible unintended consequences.

Commentary:

Every Bill passed by Congress that becomes Law implicitly contains a representation by Congress that it has the constitutional power to make the Law, that the Law is in the best interests of the United States, that the United States can afford the Law, that the Law has a purpose and that the range of unintended consequences are dominated by the contemplated benefits.

Congress should be made to include in every Bill a declaration stating expressly what is obviously implied. Each of these declarations would allow competing political candidates to contrast their positions on specific legislation with the position of the incumbent. Further, an elected person who consistently supports measures that turn out to have been ill advised becomes a questionable leader despite the genuineness of his or her decisions.

30.7 No State Bailouts

Summary:

Congress shall pass no law to purchase (i.e. bail out States) State debts unless the purchase is ratable based on population for all States or unless approved by a two-thirds vote of both Houses.

Proposed Language:

Congress shall have no power to provide financial assistance to, or purchase any debt securities of, any State or entity by which it does business or subdivisions or municipalities thereof unless the financial assistance or purchase is provided to all States and prorated by population determined by the most recent census or unless approved by a two-thirds vote of both Houses.

Commentary:

Any effort by Congress to bail out any person, business or state is a form of special legislation. In 1980 Congress bailed out Chrysler and did not lose any money in the process. The justification was a classification founded on the theory of “too big to fail.” In 2009 Congress bailed out Wall Street under the same theory, with a large consensus being that it was a waste of money and did more harm than good. At the same time, Congress bailed out General Motors on the “too big to fail” theory, but the jury is still out on whether taxpayers will recover all of the $50 billion in equity, $6.7 billion loan and $18 billion in tax breaks furnished to that company to allow it to continue under reputedly uneconomical contracts.

There has been discussion about bailing out certain states like California which have mismanaged their economy to the point that they may go bankrupt. One can imagine the classification dreamed up to support a congressional “too big to fail” bailout of California, namely GDP produced by the state, importance of the state to the national interest, and similar arguments. Yet, most people believe this is wrong. The purpose of this amendment is to ensure that states are not bailed out unless two thirds of both Houses agree. States need to conduct themselves responsibly or face the consequences.

30.8 No Exemptions for Congress

Summary:

Congress shall not exempt itself from any law.

Proposed Language:

Congress shall have no power to exempt itself from any law or be separately classified so as to be treated differently from the people generally.

Commentary:

It is common knowledge that Congress exempts itself from numerous laws that it imposes on Americans generally. Some of these laws are OSHA, the Freedom of Information Act, the National Labor Relations Act, and Civil Rights Act. James Madison said that Congress “can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of society.” Federalist No. 57.

Most people believe Congress should live by the same laws that it imposes upon others. This amendment assures that result.

30.9 Spending Limit

Summary:

Congress shall not appropriate monies greater than 20 percent of GDP without a two-thirds vote of both Houses.

Proposed Language:

Congress shall have no power to appropriate monies for any year for which a budget has been established by Congress of a sum greater than one-fifth of the Gross Domestic Product of the United States for the prior year as determined by Congress unless the appropriation is approved by a two-thirds vote of both Houses.

Commentary:

This amendment is as close as we have come to a balance-the-budget amendment. The trouble with a requirement that the budget be balanced is that it denies flexibility to Congress to deal with unforeseeable circumstances that require occasional borrowing. In fact, it was the availability of credit that permitted Henry Ford to grow Ford Motor Company into the business that it is today. It would be unfair to the American people to deny Congress the ability to use credit vehicles in appropriate cases.

However, Congress must exercise discipline regarding the money it borrows. We have provided this discipline by specifying a targeted guideline of 20 percent of Gross Domestic Product (GDP) with the power of Congress to override that guideline by a two thirds vote of both Houses. We believe such limitation, in conjunction with Congress’s obligation to make declarations with respect to its laws, will give Congress flexibility to borrow money if a super-majority consensus believes that to be in the best interests of the country.

The federal government spending as a percentage of GDP over the past fifty years is shown in the following chart:

31 Timely Appointments

Summary:

The President and Senate shall act in a timely manner on the President’s appointment of judges, ambassadors, and other public ministers or they shall not be paid.

Proposed Language:

The President shall nominate ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other federal courts established by Congress upon the advice and consent of the Senate within ninety days of any vacancy, and the Senate shall confirm or reject such nomination within one hundred twenty days thereafter, whereupon, if the nomination is consented to, the President shall appoint the person so nominated within thirty days. If the President or the Senate, as the case may be, do not timely act, the compensation otherwise payable to the President or members of the Senate and its staff shall be abated without recoupment until such action is taken.

Commentary:

The second paragraph of Article II § 2 of the Constitution gives the President the power to “nominate, and by and with the Advice and Consent of the Senate, ...appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law .…”

Both the President and the Senate manipulate this provision in the Constitution for political purposes. The President can allow vacancies on federal courts and elsewhere to remain pending a forthcoming election if he is concerned that the consent of the Senate will not be forthcoming. The Senate, on the other hand, pursuant to protocols among Senators, gives the Senator in whose State a particular person is to be appointed great influence as to whether that person is approved in committee or brought to the floor of the Senate for a vote. In addition, the Senate as a whole, if managed by a party different than that of the President, can delay appointments to achieve other political objectives.

As of 2008, when we last looked at this issue, 520 days elapsed on average for the Senate to deny consent to those federal district court judges nominated for appointment, an increase from 170 days in the late 1970s. Those persons who were favorably accepted increased to 182 days from approximately 70 days. These delays are outrageous because decent, honorable people who have committed to serve at the request of the President must put their life on hold pending action by the Senate. In the meantime, important posts remain vacant, and the public’s business is put at peril. On January 29, 2012, The New York Times in its lead editorial stated, “Filibustering Nominees Must End” and added:

Changing the rule is a risky course, but the only way to get the nation’s work done. The system for reviewing presidential appointments is broken. The Senate has a constitutional duty to provide advice and consent on the naming of judges and high-ranking executive branch officials. But the process has been hijacked by cynical partisanship and cheap tricks.

This is not a new problem, but it has gotten intolerably worse and is now threatening to paralyze government, as Republicans use the filibuster to try to kill off agencies they do not like. The number of unfilled judicial seats is nearing a historic high.

It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators…..

We believe a sanction of eliminating compensation to all Senators and the President if they fail to take timely action under the proposed amendment is a sufficient impetus to compel obedience to constitutional duty. Under the proposed Amendment, the President has ninety days from a vacancy to nominate a successor and the Senate has 120 days thereafter to consent. Upon consent, the President has thirty days to make an appointment.

32.1 Prioritize Agencies

Summary:

The President shall prioritize all federal agencies with a number to resolve conflicts between agencies and preserve the rule of law.

Proposed Language:

All agencies of the federal government having the authority to issue regulations shall receive a priority number by the President by January 1 of each even numbered year with the highest priority being the lowest number. Conflicts among valid regulations among agencies shall be resolved in favor of the agency having the highest priority. New agencies not having a priority number shall have the lowest priority in the order established unless the President amends his prior prioritization.

Commentary:

One can easily discern that when there are thousands of regulations, there will be conflicts among the regulations of any single agency and conflicts between the regulations of one agency and any other agency. The courts have had occasion to deal with these conflicts. In 1985 the Federal Claim Court ruled that Department of Defense regulations prevailed over Army regulations. In 2009 that court ruled that Department of Defense regulations prevailed over inconsistent Air Force regulations.

Today it is estimated that there are more than 1,300 distinct organizations across all three branches of the federal government. In all probability, the number of these agencies is growing and not diminishing. We publish so many regulations, that it is more appropriate to gauge the number of them by referring to the pages. In 1970 the Code of Federal Regulations contained 54,834 pages. By 1998 the Code of Federal Regulations contained 134,723 pages (201 volumes). In 2008 ABC News reported that the pages in a single title of one volume, when removed and then attached end to end, rolled out the length of 1-1/2 football fields. Another report in 2008 measured the linear width of these volumes at 304 inches. These numbers have continued to grow.

As one can imagine, many of these regulations impose penalties for noncompliance and generate a strong probability of conflict, established to be exponential by mathematical calculations. Currently, these conflicts, to the extent they are not resolved in a court proceeding, are resolved by people presumably trying to do the right thing. However, the notion that the law is ultimately determined by people is inconsistent with the notion of the rule of law and causes society to degenerate into the rule of men. When men begin to rule, freedom begins to die.

The proposed amendment requires the President to number each federal agency and thereafter provides that the agency with the lowest number prevails over agencies with larger numbers. The method of resolving conflict is simple and easy. The only remaining hurdle is the resolution of conflicting regulations within a particular agency. This the court will have to resolve. Further, this process ensures that there is but one government ruling us and not a plethora of many governmental agencies exhibiting their power and imposing their rules upon ordinary Americans as their activities in some fashion fall under a particular agency and its regulations.

32.2 Limit Agency Authority

The delegation of legislative power by Congress to the President or any department or any executive agency shall be accompanied by standards and shall be strictly construed. If there is any doubt concerning whether a government official has delegated power, the presumption shall be that he does not. Courts shall not defer to the judgment of legislative or executive officials with respect to their power nor accord to them any presumption of authority but shall require strict proof. Whether any regulation is authorized by law is at any trial a question of fact for the trier of fact, though the court can reverse a finding that authority exists if it believes as a matter of law there is no authority. No agency to which legislative power is delegated shall have any privilege to withhold information from Congress.

Commentary:

Under the Constitution, each of the branches of government is delegated power. In order to preserve the separation of powers, a concept essential to our freedoms, the Supreme Court has established that one branch cannot delegate its powers to another branch. In Marshall Field & Co. v. Clark, 143 U.S. 649 (1892), the Supreme Court said, “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” A general exception to the foregoing rule is that Congress can delegate regulatory authority to the President or executive agencies having legislative implications as long as standards are applied. However, over the years, the standards required to support this delegation have degenerated into standards such as the public interest. The only reason Congress would do this is because it is lazy and would prefer for the regulators to determine standards that should more appropriately be determined by Congress. The growth and breadth of federal agencies is a concern to everyone. A good way to restrain them is to require Congress to establish better standards and require courts to restrict agency powers in doubtful situations by strictly construing their authority. It is also appropriate that agencies that are, in effect, executing legislative power, not have a privilege to withhold any information from Congress.

32.3 No Retroactive Regulations

Summary:

Proposed agency regulations shall have no effect until finally approved.

Proposed Language:

Except to correct mistakes in regulations which impose greater restrictions on the People than were intended, proposed regulations made by any agency of the United States shall have no effect for any purpose whatsoever until they are adopted, and then their effect shall be prospective.

Commentary:

By proposed Amendment 30.2, we have suggested that the current authority of Congress to pass retroactive laws be limited to Bills passed by a two thirds vote of both Houses. We also believe agencies should not be allowed to pass retroactive regulations under any circumstances except to correct mistakes in regulations that impose greater restrictions on the People than were intended.

Since most people do their planning on a yearly basis, it is fair that they be able to know in advance what the laws will be for a particular year, most especially tax laws that have such a significant influence on economic planning. It stands to reason that, if Congress wants to change the income tax laws in a particular year, it should not make those laws effective until the first of the following year. Yet, the Congress in enacting general revenue statutes has almost without exception given such laws an effective date prior to the date of enactment. The Supreme Court has authorized this practice holding that it does not violate due process if reasonable. U.S. v. Darusmont, 449 U.S. 292 (1981). Our lives and decisions should not be made to depend on whether judges think retroactive tax laws are reasonable. The Supreme Court has also held that treasury regulations may be retroactively applied unless doing so constitutes an abuse of discretion. Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184 (1957).

32.4 No Multiple Applications

Summary:

Applications for federal permits shall be made to one agency only and ruled upon promptly.

Proposed Language:

No person shall be required to file an application to obtain a right or permit required by law with more than one agency or department, and that agency or department shall coordinate as it deems appropriate with other agencies and departments that have an interest in the matter. If more than one agency or department requires an application for permit, the applicant has the right to select which of the agencies or departments shall receive his application unless otherwise specified by law. Any such application shall be acted upon by the agency or department within one year from the filing thereof or shall thereafter be deemed unconditionally approved as filed. A denial, or approval with conditions which are not satisfied within six months from agency action from the applicant’s submission of a satisfaction of conditions, shall be subject to judicial review before the federal court of appeals of the circuit in which the applicant resides.

Commentary:

The process of creating wealth requires an idea, a committed individual, labor and capital. The result is productivity which creates wealth and in our system of government benefits everyone. We call this capitalism, namely the economic order that results from a free society. This order lets the market make priorities and is based on a collective confidence that individuals whose fortunes are at risk are better suited to manage the capital than a government bureaucrat.

The percentage of new ideas that are successful is low because there are many obstacles that retard the decision-making necessary for reaching a profitable result. Each decision involves a prediction about what will happen when a certain action is taken. Yet, no one, including the government, is an expert in making decisions, and, when they are wrong as determined by the marketplace, there is always failure and loss and injury to the People with the number hurt depending on the level of government where the decision is made.

In order to stimulate the creation of wealth and the productivity essential to that end, it is in our interest to minimize the obstacles to a reasonable extent. Today, one of the most serious obstacles is the necessity as established by law and regulation that so many activities be approved in advance by governmental officials and permitted before they can take place. We have all heard about the Canadian pipeline, which has been seeking permits to install an oil pipeline from Canada to New Orleans and the numerous permits the owners were required to obtain from state and federal officials.

The federal government has a legitimate interest in requiring that some businesses file applications with it and receive permits to engage in the proposed activity. This is particularly true when public health and safety are affected in more than one state. However, placing the burden and risk on the applicant becomes an unfair burden on the creation of wealth when too many permits and too many government decision-makers are involved. In fact, substantial amounts of capital are required simply to obtain permission to engage in an activity that creates wealth, employment and benefits for all of us.

In order to reverse a growing trend of excessive governmental interference with business activity, we have proposed that the federal government, in those areas where permits are required, to manage its affairs in such a manner that an applicant need apply to one agency only. From that point, the particular agency is responsible for dealing with all of the interests of any other affected agency in such manner as it considers appropriate. In addition, we have proposed that this process not be extended and drawn out but resolved in a shorter time. We believe such a process will accelerate the creation of wealth and employment of our citizens and provide the benefits the applicant seeks to present to the People in exchange for a profit the applicant believes the People will find acceptable.

32.5 President Answers Questions

Summary:

Upon request of the House of Representatives, the President shall appear before it while in session to answer questions but not more often than weekly and for not more than forty minutes for each appearance.

Proposed Language:

Upon request of the House of Representatives, the President shall appear before it while in session to answer questions but not more often than weekly and for not more than forty minutes for each appearance.

Commentary:

The British do not have a written constitution, with the effect that they hold their democracy together through a changing and evolving set of procedures relating to decision-making generally. These procedures, being acceptable to people, become customs operating to balance competing tensions that exist in the management of people. One of these customs is the right of members of Parliament to question the Prime Minister for thirty minutes each Wednesday while Parliament is in session. The Parliament has established procedures that must be followed in terms of submitting questions so that the Prime Minister knows what to expect. It is a useful tool in many respects because it humbles the Prime Minister, makes the Prime Minister continuously aware he serves at the sufferance of Parliament, and forces the Prime Minister to deal with issues that he might prefer to avoid.

In contrast, the President of the United States, being the head of a separate branch of government, has no obligation to speak to Congress except to deliver State of the Union address which has sometimes been delivered in writing. When the President does speak, it is usually at a press conference to reporters or in a meeting called by him attended by select congressmen or senators. This system tends to reinforce hubris, ignorance, and disinformation, on one hand, and diminish congressional leadership, truth, and clarity, on the other.

While it would be a radical shift for us Americans to adopt a British system entirely, a proposition many find more comforting than our own, we believe that requiring the President to answer to Congress upon its request for not more than forty minutes once a week while Congress is in session would be of great benefit to the People. For example, it has occurred to us that Congress could easily be equipped with electronic buttons wherein they could record their opinion as to whether the President was answering or avoiding the question. We all know that politicians love to skirt uncomfortable questions and talk about something else. Overall, the opportunity would be refreshing and helpful and is therefore recommended.

33.1 Constitutional Amendments by States

Summary:

A majority of State legislatures shall have the right to submit amendments to the Constitution to the States for ratification by three-fourths of the States.

Proposed Language:

Whenever a majority of the legislatures of the several States propose amendments to this Constitution, they shall file the same with Congress, which shall within four months return the proposed amendments to the legislatures of the several States with such advice as it deems appropriate and, upon such return or upon the failure of Congress to timely make such return, the proposed amendments with Congress’s return, if any, shall be submitted to the legislatures of the several States and, when ratified by the legislatures of three-fourths of the several States, the proposed amendments shall be valid to all intents and purposes according to the provisions thereof.

Commentary:

Article V of the Constitution provides for two methods of changing the Constitution. The first method permits Congress to recommend changes to the States, which can then ratify those changes by a three fourths majority vote of the States. The other method, relied upon by Campaign Constitution, is to permit two thirds of the States to seek a Constitutional Convention to make changes to the Constitution. When two thirds of the States agree, Congress must order a Constitutional Convention. Following the Constitutional Convention, Congress can refer the proposed changes to either the States for ratification by three fourths thereof or for ratification by constitutional conventions in each of the States for ratification by three fourths of such conventions.

The latter method is cumbersome. It has never been used before. It may be the only way we, the People, can take our country back and make the changes necessary to put our country on a solid footing. It would be appropriate to give the People a better, more efficient way of making changes to the Constitution other than those recommended by Congress.

For the above reasons, we propose this Amendment to allow the legislatures of the several States to propose amendments to the Constitution in the same fashion as Congress and, upon such proposals, such Amendments will be referred to the States for ratification by three fourths of the States. When the Constitution was originally signed, such a procedure would have been impossible because of the methods of communication. However, with today’s electronic systems of communication, this is a reasonable, viable and feasible approach and gives the States a dignity equal to Congress when it comes to amending the Constitution.

This method is also facilitated by the establishment of a Board of Governors as set forth in proposed Amendment 35.4 which will allow the States to work together to coordinate those actions which they collectively, based upon the actions of their several legislatures, believe to be in the best interest of America.

33.2 Save the Bill of Rights

Summary:

Amendments to the Bill of Rights or to the Thirteenth, Fourteenth, and Fifteenth Amendments shall not be authorized without unanimous approval of all the States.

Proposed Language:

Any amendment changing the Bill of Rights or the Thirteenth, Fourteenth, or Fifteenth Amendments shall not be valid unless ratified by all the States.

Commentary:

The demographics of America are changing. Emerging religious groups may find the First Amendment to be a restriction that they would prefer to avoid. They may also prefer to avoid other rights deemed important to Americans, which have not been touched since the founding of the country and which most people believe should never be touched. These rules that govern our society have the sanctity of the Magna Carta, and it seems appropriate that the only way to change them be by unanimous vote of the States.

34.1 Voting Tax

Summary:

As a condition to the right to vote in a federal election, every citizen shall annually pay an equal tax sufficient to raise revenues necessary to operate Congress, provided the tax shall be $10 per year until changed and never more than the cost of one-fourth of one troy ounce of silver.

Proposed Language:

Notwithstanding Amendment XXIV, as long as the United States obtains revenue under the Sixteenth Amendment, every citizen of the United States eighteen years or older shall file an income tax return and, notwithstanding any other law or provision of this Constitution, make a tax payment equal to the cost of operating Congress divided by the last census of the population of the United States rounded to the nearest dollar but not more than the cost of one-fourth troy ounce of silver nor less than ten dollars and, upon payment, shall receive evidence thereof, which evidence shall be shown as a condition to the right of such person to vote in any federal election. Such amount until changed by Congress shall be ten dollars and, when changed by Congress, shall be published by the President no later than the first business day after January 1 of each even numbered year.

Commentary:

As shown in our Amendment 34.4 Commentary, the current budget for operating Congress is about $4.5 billion per year. Although almost everyone pays a federal tax of some kind (e.g. gasoline), many pay no income tax, the revenue from which is intended to defray the general obligations of the federal government.

In order to evidence and confirm a responsible attachment to the affairs of Congress and the government and to eliminate voter fraud, we believe a modest and limited voting tax would be an appropriate condition to voting, notwithstanding the Twenty-Fourth Amendment. The intent is to educate voters by conditioning their participation in government by some modest measure of cost, effort, and responsibility, which becomes a badge of honor. Even those who wanted to vote in ancient Greece had to get to the Pnyx before it filled up.

Is there any logic behind this tax? We know that a voter has to take the time to register to vote, which costs time and money. We know that it also costs a voter time and money to go to the polls and vote. We know that a voter pays sales and gasoline taxes in the ordinary course of affairs. However, in our view, he never participates in the actual administration of government unless he fills out a government form and pays a little money. The very act of doing this and paying one’s share of the cost of running Congress reinforces a direct relationship between the voter and the government and highlights the understanding that what government does costs money. The process of filling out a form is education, which is bound to enhance participation in government and give us a more informed citizenry. The alternative is that we slowly delegate to others the power to decide for us and their influence over our institutions changes them in ways that protects them from accountability. This has already happened. It is why Campaign Constitution was formed. One thing is certain: the current system is not working since the percentage of registered voters to eligible voters continues to fall. See Amendment 30.1 Commentary. The only inference one can make is that a large portion of actual voters are influenced to vote, not by a concern for country, but by political influence to support or defeat a particular candidate. We anticipate much discussion on this proposal but believe the subject deserves debate whether or not it is finally included in changes to the Constitution approved by the States.

34.2 Limited Number of Regulations

Summary:

Federal regulations cannot exceed four times the size of federal statutes.

Proposed Language:

The total size of all regulations issued by all agencies and departments of the United States, measured in bytes of text, shall not exceed four times those contained in all federal statutes, and any regulations in excess of such amount shall be void as of January 1 of each even-numbered year in the reverse order of the promulgating agency’s priority. No later than November 1 of each odd-numbered year, Congress shall publish the bytes of text in all federal statutes effective for the following year, and the President shall publish the bytes of text in all regulations of all agencies by priority number for the following year.

Commentary:

The number of federal laws and related regulations with which we must live seems to depend on the source. One report summarized the statements of various members of Congress, showing much disagreement on the subject. One thing is undisputed. There are too many. Title 26 of the Code of Federal Regulations (the part written by the Internal Revenue Service) contains 20 volumes, or 13,458 pages. At the same time, the Internal Revenue Code written by Congress contains 3,387 pages, meaning that the regulations were four times larger than the law in pages without adjustment for the size of the print.

One thing is clear which is that the more laws and regulations we have, the less rule of law we have. Rule of law is a fundamental discipline essential to the continuation of democracy and freedom. We have all heard that the Affordable Care Act is 2,700 pages long and that the Dodd-Frank Wall Street Reform and Consumer Protection Act was close to that. Who do you suppose writes these laws? Who gives instructions to the secretaries in the back room about what to put in these laws? Who decides whether certain provisions should be included or left out? Or what provisions from other laws should be copied and pasted in? Who reads these laws? Why is it that after the Affordable Care Act was passed Congress immediately had to pass amendments containing hundreds of pages? Computers are handy, but they are used by Congress without discipline to give us runaway laws. If members of Congress had to write these laws themselves without the support of any staff, we can be sure they would be substantially shorter and restrain Congress from much of the complexity and cross-referencing it now uses.

One must also realize that in addition to regulations promulgated by agencies with the permission of Congress, those agencies in turn issue bulletins, executive directives, and other orders to facilitate the management of their mission.

We will let the voters put restraint on the amount of laws created by Congress but believe the number of regulations should not exceed in quantity some factor of those laws. Since the Internal Revenue regulations are considered some of the most complex we have and since the ratio was four to one in 2006, we believe the four times ratio is appropriate.

34.3 Limited Life of Regulations

Summary:

Federal regulations shall automatically be void ten years after their adoption unless earlier approved by Congress for a stated term.

Proposed Language:

Regulations shall be void ten years after they are effective unless earlier approved by Congress for a stated term. Congress shall have the authority to exempt specified regulations from this provision.

Commentary:

You are referred to proposed Amendment 34.2 for a discussion of the problem of regulations. This amendment automatically voids regulations after ten years unless approved by Congress before then. The benefit of this provision is that federal regulators must be sensitive at all times to the regulations they have promulgated to manage whatever tasks Congress and the President have assigned to them. If they are important enough to continue after ten years, they will need congressional approval. Otherwise, the regulations will lapse.

We believe this discipline in the bureaucratic structure of the federal government is essential to preserve and maintain the rule of law and to discipline federal bureaucrats with sensitivity to the public that unimportant and unneeded regulations have a limited life.

34.4 Limit Number of Congressional Staff

Summary:

Congressional staff shall be limited to twenty-five thousand persons unless increased by a majority vote of the State legislatures upon the request of Congress.

Proposed Language:

Unless increased by a majority vote of the State legislatures upon the request of Congress, the total staff answerable to members of the House of Representatives and Senate and their committees shall not exceed twenty-five thousand persons for allocation among them as the members of Congress deem appropriate.

Commentary:

In 2012 the expected budget for operating Congress, including all compensation payable to members of Congress and their staff, as well as the cost of its police force, buildings, the General Accounting Office, the congressional budget office, and others, is estimated to be $4.5 billion dollars. It is common knowledge that much of this money goes to compensate persons who support representatives and senators in their work both within their offices and in various committees. These persons are commonly referred to as “congressional staff.” Some of these persons use their jobs as stepping stones to more rewarding opportunities requiring a knowledge of congressional operations and familiarity with particular persons who can make things happen. Others become experts and spend their professional years over complex laws like Social Security, Medicare, and the Internal Revenue Code. Without them, Congress in all likelihood would collapse.

In 2000 each congressman was entitled to fourteen staff persons and each senator was entitled to thirty-four staff persons. Each House committee averaged sixty-eight persons and each Senate committee averaged forty-six persons. We believe the size of staff over which any single elected representative can responsibly exercise supervision must be limited; otherwise, there comes a point when the staff begins to rule the nation. A single person has only so much time to manage activities where those activities involve the affairs of the nation. This is different from a chief executive officer, who manages a company with thousands of employees. In the latter case, those employees have intermediate managers each charged with a mission to accomplish some specific task, which is ultimately measured by the profit generated for the company.

Representatives in a democracy must continuously balance the needs of the public interest with the liberties and freedoms of individuals to ensure the preservation of that essential balance, which promotes creativity and provides incentives to work hard to better the lives of all.

The current staff numbers applicable in 2000 may or may not reflect what is appropriate to achieve this balance without losing control. Assuming that the relative ratios existing in 2000 between representatives and senators are appropriate, then one should know that at that time the House of Representatives was authorized to hire 6,090 people, and the Senate was authorized to hire 3,400 people, each without counting their committee staff. Other information shows that the Senate has twenty committees, seventy sub-committees and four joint committees. The U.S. House of Representatives has twenty-three committees of which three are special committees and twenty are standing committees which are in turn divided into 104 sub-committees. One report states that in the 1990s, the House hired eleven thousand staff members, and the Senate hired six thousand staff members. It was recently reported that a large number of congressional staffers receive six-figure salaries some as high as $163,000 per year. There are nearly two thousand House staffers with salaries of $172,500.

Since it is clear that the more staff members Congress has, the more work and laws they produce, it is also clear that, without proper limits, congressional staff will continue to grow and threaten our freedoms. As such, we believe that limiting the staff of Congress has the same discipline supporting the rule of law as does our proposed amendment limiting the number of regulations. We propose that the staff of representatives, senators and the various committees not exceed twenty-five thousand persons. As a hedge against unforeseen demands, we recommend entrusting the State legislatures with the power to increase this number upon the request of Congress.

34.5 UFO Full Disclosure

Summary:

No government person shall suppress information regarding UFOs.

Proposed Language:

No person in government, elected, hired, or appointed, shall suppress any information relating to the sighting or existence of extra-terrestrial phenomena and shall have a duty to preserve and disclose any such information to the public promptly as it becomes available, including information existing at the time of the adoption of this amendment.

Commentary:

The phenomena of unidentified flying objects and ancient cultures mystify Americans. In response to growing curiosity, the History Channel, the Discovery Channel and others devote considerable time and money to displaying ancient information indicating that alien cultures previously existed on earth. Yet, few scholars and intellectuals either study or investigate the issue and most of them reject the entire concept as fanciful. As with any phenomenon of this sort, there is usually a diehard minority who suspects a conspiracy that the government knows more than it is telling us and that this is wrong.

We believe that information, if any, related to unidentified flying objects or aliens should be disclosed to the American people. If, in fact, there is no such information, then the disclosure obligation is irrelevant. If there is such information, then there is no reason why our government should know it and not the people since it would affect all of us.

We were influenced in proposing this amendment by the comments of Maurice Chatelain, a French mathematician and a specialist in radar radio transmissions, telecommunications, and orbital calculations. He began service in this country in our space program when he left France in 1955. In his book Our Cosmic Ancestors (1987), he made the following comments after describing the NASA space program in detail:

But the astronauts were not limited to equipment troubles. They saw things during their missions that could not be discussed with anyone outside of NASA. It is very difficult to obtain any specific information from NASA, which still exercises a very strict control over any disclosure of these events.

It seems that all Apollo and Gemini flights were followed, both at a distance and sometimes also quite closely, by space vehicles of extraterrestrial origin – flying saucers, or UFOs (unidentified flying objects), if you want to call them by that name. Every time it occurred, the astronauts informed Mission Control, who then ordered absolute silence.

I think that Walter Schirra aboard Mercury 8 was the first of the astronauts to use the code name "Santa Claus" to indicate the presence of flying saucers next to space capsules. However, his announcements were barely noticed by the general public. It was a little different when James Lovell on board the Apollo 8 command module came out from behind the moon and said for everybody to hear: "We have been informed that Santa Claus does exist!" Even though this happened on Christmas Day 1968, many people sensed a hidden meaning in those words that were not difficult to decipher.

James McDivitt was apparently the first to photograph an unidentified flying object, on 4 June 1965, when he was over Hawaii aboard Gemini 4. Frank Borman and James Lovell took magnificent photographs of two UFOs following Gemini 7 on 4 December, 1965, at a distance of a few hundred yards. The UFOs looked like gigantic mushrooms with their propulsion systems clearly showing a glow on the underside.

The following year, on 12 November, 1966, James Lovell and Edwin Aldrin in Gemini 12 also saw two UFOs at slightly over half a mile from the capsule. These were observed for quite some time and photographed repeatedly. The same happened to Frank Borman and James Lovell in Apollo 8 on Christmas Eve 1968, and to Thomas Stafford and John Young aboard Apollo 10 on 22 May, 1969. The UFOs showed up both during the orbit around the Moon and on the homeward flight of Apollo 10.

Finally, when Apollo 11 made the first Moon landing on the Sea of Tranquility and, only moments before Armstrong stepped down the ladder to set foot on the Moon, two UFOs hovered overhead. Edwin Aldrin took several pictures of them. Some of these photographs have been published in the June 1975 issue of Modern People magazine. The magazine did not tell where it got them, vaguely hinting at some Japanese source.

35.1 Reinvigorate the Tenth Amendment

Summary:

The States or the People shall have all powers not delegated to Congress by the Constitution whether existing before or arising because of the Constitution.

Proposed Language:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People. Such powers shall include all those powers not expressly delegated to Congress under the Constitution, whether or not those powers existed prior to the adoption of the Constitution or those arising thereafter as a result of the Constitution. The States shall not exercise these powers in a way which diminishes or interferes with the powers expressly delegated by the Constitution to Congress, the President, or the Judiciary.

Commentary:

In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), the Supreme Court found that efforts by the States under the Tenth Amendment to limit the terms of their federal representatives were unconstitutional. The court adopted Justice Story’s argument that the powers reserved could only be powers that existed before the Constitution and not powers springing out of the existence of the Constitution (“No state can say, that it has reserved, what it never possessed”). It is not likely the Founding Fathers even considered such a limitation to exist in the Constitution. We believe States should have all powers not delegated to the three branches of government by the Constitution and have therefore suggested this amendment.

35.2 Term Limits

Summary:

State legislatures shall have the power to limit the terms of members of Congress in their States.

Proposed Language:

The legislature of each State shall have the power to limit the terms of the Senators and Representatives in Congress representing such State.

Commentary:

In the 1980s, there was much political discourse about whether our country could improve itself by limiting the terms of members of Congress. Congress itself did nothing. However, certain states determined that it would be better for them if their congressional members were exposed to term limits. Consequently, the legislatures in fourteen states passed term limit laws. Eventually, these laws were challenged and their constitutionality considered by the Supreme Court.

In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), the Supreme Court held that the Tenth Amendment, by which powers not delegated to Congress were reserved to the states or the people, did not confer power on the states to adopt such legislation. The argument was the Tenth Amendment gave the states powers that existed prior to the Constitution but did not reserve to the states additional powers that arose by reason of the Constitution. See Amendment 35.1 Commentary.

While the issue of term limits continues, sometimes with more intensity than at other times, we see no reason why the states should not be able to limit the terms of their own federal representatives. In fact, we believe this is a far more preferable method of dealing with the issue than making a blanket rule applicable across the nation. The diversity of our many States permits the experimentation that, in the end, generates ideas that can be helpful to all of us. A general uniform rule, on the other hand, can result in mistake and stagnation. Moreover, it is much easier for a state to change its law on term limits than it is to change a constitutional amendment. It is also unlikely that members of Congress will ever impose term limits on themselves because there is a certain magic about Washington, D.C., which has a Sirenic appeal. In fact, one reads frequently about how long-term members of Congress, upon retirement, rather than go home where they came from, get a lobbying job or otherwise retire in Washington. The overall notion held by most Americans is that people have a duty to serve for a reasonable time to help their state and their country and are then expected to return and resume where they left off when their government service began.

35.3 State Repeal of Federal Laws and Removal of Federal Judges

Summary:

Two-thirds of the state legislatures have the power to repeal a federal law and remove federal judges and Justices.

Proposed Language:

The legislatures of two-thirds of the several States shall have the power to repeal any law or part thereof or regulation of the United States or remove any federal judge or justice of the Supreme Court by a resolution describing the law or part thereof or regulation to be repealed or judge or justice to be removed with the effective date of such action being as stated in the resolution or upon obtaining the required approval, whichever date is later. Upon the required approval, the resolution shall be signed by the governors of the States having the approving legislatures, shall contain a certification of approval, and shall be delivered to the President and Congress by the governor last to sign and shall take effect as provided therein.

Commentary:

Some scholars believe that States should have a right to repeal federal laws. The Constitution was ratified on the premise that the federal government would have limited powers and that the States and the People would have all other powers. Notwithstanding this intent, over the years the States have been limited largely to the exercise of police powers with no say or very little in the management of the federal government.

This management was indirectly provided for in the Constitution as originally adopted, which provided that the state legislatures would elect U.S. Senators. However, fraud and corruption in state legislatures at the turn of the twentieth century gave rise to the progressive era, which presumed that the People were better qualified to decide who their U.S. Senators should be than their legislatures. The result was the Seventeenth Amendment, which was passed in 1913.

Over the years, persons elected to the U.S. Senate came to envision themselves as future presidents and rarely consulted their State legislatures with respect to material legislation.

While the Seventeenth Amendment is proposed for repeal by our proposed Amendment 36.5, in an effort to increase the power of State legislatures and the accountability of the federal government and to improve the quality of leaders in the United States Senate, we have also deemed it important to enlarge the power of the states to allow their leaders to contribute to national policy by having veto authority over federal legislation.

Benefits of diversity within the States and the experimentation they can undertake cannot be overestimated. They are a valuable resource in the management of government and are largely unused in the management of the federal government. In order to give States a greater influence in the formulation of national policy, we believe it important to increase their powers and to provide a sort of in terrorem effect on any Congress that chooses to ignore them.

In order to give the States the necessary influence they deserve, we have suggested that they have the power to repeal federal law or remove federal judges by resolutions passed by two thirds of the States. In order to do this, the States need a vehicle whereby their governors can convene to develop uniform issues and proposals and present them to their state legislatures. Currently, no such system is available, with the effect that the nation generally is denied the benefits of many knowledgeable, intelligent, and serious leaders.

35.4 Board of Governors

Summary:

There shall exist a Board of Governors (State governors) to assist States in the exercise of their powers under the Constitution.

Proposed Language:

There is hereby established a Board of Governors whose members shall be the governors of the several States, which shall act according to rules adopted by the governors of the several States. The Board of Governors shall have power by a two-thirds vote of its members to make recommendations to Congress or to their State legislatures and to administer all activities assigned to the States or State legislatures herein as they deem in the best interests of the United States. The Board of Governors shall be immune from all taxes.

Commentary:

Our effort to enhance the power of the States requires a method of exercising that power. We have chosen to do this by establishing a Board of Governors which shall be authorized to meet as it sees fit according to rules it promulgates and to make decisions of national importance. Under the proposed amendment, governors cannot exercise their constitutional powers without the approval of their legislatures. The mere existence of this Board will act as a restraint on Congress and the President because of the Board’s potential to critique congressional and national policy and educate citizens.

Of the forty-four proposed amendments initially suggested by us, six of them involve States, including the power to initiate amendments to the Constitution [Amendment 33.1], the power to increase congressional staff [Amendment 34.4], those additional powers conferred by clarification of the Tenth Amendment [Amendment 35.1], the power to limit the terms of congressional members [Amendment 35.2], the power to repeal federal laws [Amendment 35.3], and the power to elect U. S. Senators as first envisioned by the Founding Fathers [Amendment 36.5].

35.5 Legislatures Defined

Summary:

Approval by each State legislature means majority approval by all members of each House in the State’s legislative branch.

Proposed Language:

Any approval by the legislatures of the States as used in the Constitution means approval by a majority of all members of each House in their legislative branch.

Commentary:

This amendment is solely for the purpose of clarifying that a majority of both Houses of any State legislature is required for legislative approval and that such approval is of the whole number of legislators in each House and not a majority of a quorum.

36.1 Jury Decides Unreasonableness of Government Action

Summary:

Whether any law is unconstitutional as applied (i.e., arbitrary and unreasonable under the circumstances) is a question of fact for a jury.

Proposed Language:

Whether any law or regulation is unconstitutional as applied to particular circumstances is a question of fact for the trier of fact though the court can reverse a finding by a jury of constitutionality as applied if it believes the law is unconstitutional as applied.

Commentary:

The Fifth Amendment to the Constitution states that “No person shall … be deprived of life, liberty, or property, without due process of law ….” The Fourteenth Amendment to the Constitution states “nor shall any state deprive any person of life, liberty, or property, without due process of law ….” The term “due process” is defined by the courts to require fundamental fairness both in terms of the procedures utilized to take life, liberty, or property and the substance of the action, which is referred to as “substantive due process.” Thus, regardless of the procedures used to implement any kind of taking, government actions that are fundamentally unfair are also barred. County of Sacramento v. Lewis, 523 U.S. 833 (1998). In the above case, the Supreme Court said:

Since the time of our early explanation of due process, we have understood the core of the concept to be protection against arbitrary action,....

The principal and true meaning of the phrase has never been more tersely or accurately stated than by Mr. Justice Johnson, in Bank of Colombia v. Okely, 4 L. Ed. 559 (1819): "As to the words from Magna Charta, incorporated into the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice."

We have emphasized time and again that “[t]he touchstone of due process is protection of the individual against arbitrary action of government,…."

It is elsewhere said that a law is unconstitutional as applied if, in its application to specific circumstances, the action is deemed arbitrary. Thus, the constitutionality of the particular action cannot be determined by simply reading a law but can only be determined by considering the manner in which the law is applied and administered to a particular individual.

Currently, whether a law is unconstitutional as applied, that is whether governmental action is arbitrary, capricious and unreasonable or violates fundamental fairness, is a question of law for the courts. We believe courts are no better suited to make this determination than a jury. We believe whether a government action is arbitrary and capricious should be decided by the jury in those cases where there is a jury. As added protection, we believe, if a jury should for some reason find that a given action was constitutional as applied, that the court should be able to reverse this finding based upon its view that the law was unconstitutional as applied. However, the court could never reverse a finding by the jury that the governmental action was unconstitutional as applied and determine it to be constitutional as applied.

We have to remember that one reason Hitler came to power was that he corrupted the judicial branch. Although we might think this a remote possibility here, it is nonetheless a possibility in any country and it seems to us a hallmark for the protection of freedom to let juries decide what is reasonable and unreasonable. In fact, we believe this amendment may be the most important of all amendments proposed.

36.2 More Citizen Standing

Summary:

Every citizen shall have standing in court to seek the meaning of the Constitution or to challenge the constitutionality or validity of any federal law or regulation or to seek a declaration of the meaning thereof.

Proposed Language:

Every citizen shall have standing in court to seek a declaration of the meaning of any part of the Constitution or to challenge the constitutionality or validity of any federal law or regulation or to seek the meaning thereof.

Commentary:

Article III §1 of the Constitution states that “The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”. While this judicial power is vested in Article III §1, by Article III §2, it “shall extend to all Cases...arising under this Constitution” and other “Controversies”. The meaning of a “Case” has occupied many court decisions with enough evolution and change and dissenting opinions to muddle the clear meaning of that term. Some decisions say, if there is no “Case”, then there is no jurisdiction whereas others say, if there is no “Case”, then there is no standing. In either event, when a controversy is determined not to be a “Case”, the courts will not hear the matter.

When a person believes there is some illegality in America and decides to do something in court, he has to have “standing”. The first thing he notices is the language in Marbury v. Madison, 5 U.S. 137 (1803), that there is no standing unless there is “injury”. Yet, the Supreme Court has made clear that not every injury will entitle one to standing and the protection of the laws. The Supreme Court has said one needs a particular kind of injury or he does not have standing. In Baker v. Carr, 369 U.S. 186 (1962) (the “one man, one vote” case), the Supreme Court said there was standing when there was an actual controversy and the plaintiff alleged “a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues....” However, these simple rules began to change. In Allen v. Wright, 468 U.S. 737 (1984), the Supreme Court said standing was one of those doctrines that cluster about Article III, which “relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government”. Make sense? In its effort to give substance to the word, the Supreme Court has relied on tradition and a “concern about the proper – and properly limited – role of the courts in a democratic society...”, Warth v. Seldin, 422 U.S. 490 (1975), or “the idea of separation of powers”, Allen v. Wright, 468 U.S. 737 (1984). In Allen v. Wright, the court acknowledged the “absence of precise definitions” but stated it “hardly leaves courts at sea in applying the law of standing” as it proceeded to ask rhetorical questions that could only be answered by subjective determinations. The abyss of subjectivity is also made apparent by the lack of unanimity in the court on major standing questions, with dissenting justices complaining that standing decisions reflect a hostility to the underlying claims.

In an effort to give shape to an amorphous term, the court decided that the “central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts” (emphasis supplied), Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560 (1992). In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102 (1998), the court stated “standing to sue is part of the common understanding of what it takes to make a justiciable case”. The court fails to define what is “appropriate” or what is a “common understanding”. Complicating the matter is the court’s position that the standing inquiry involves both constitutional and prudential limitations, the former dealing with jurisdiction itself and the latter dealing with the exercise of that jurisdiction. With respect to the former, the Supreme Court says “Standing imports justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Article III”. Warth v. Seldin, 422 U.S. at 498. Of course, the average person recognizes that these complicated and intertwined concepts give the courts wiggle room in avoiding cases they subjectively believe should not be decided.

Shackled by standing rules that did not always work, the court has crafted exceptions, a discussion of which is beyond the scope of this commentary. These exceptions relate to First Amendment cases or cases grounded in “weighty, countervailing policies” or cases involving public safety.

A review of the cases shows that, with the exception of Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court’s foray into a search for standards has not been helpful as shown by the many exceptions, the controversies among the justices, the tendency of the Court to find standing when it wants to, and the definition of standing in terms of “tradition” or “the idea of democracy” or “the separation of powers” or “common understanding.” The Supreme Court admits that standing “incorporates concepts concededly not susceptible of precise definition” and is characterized by the “absence of precise definitions”. None of this bodes well for the rule of law.

It is time to put this issue to rest and require the Supreme Court or lower federal courts to hear cases even when they would prefer not to. If citizens cannot challenge the constitutionality or legality of federal laws, they have no way of enforcing accountability in the President or Congress.

36.3 Mens Rea Required

Summary:

No person shall be guilty of a federal crime unless the person’s mens rea has been proved beyond a reasonable doubt.

Proposed Language:

No person shall be guilty of a federal crime unless the person’s mens rea has been proved beyond a reasonable doubt.

Commentary:

The term mens rea is Latin for “guilty mind.” The due process requirement in American jurisprudence has always required some type of fault in addition to the particular action causing a crime. However, there is a growing body of strict liability crimes that result in penalties and punishment for which a guilty mind need not be proved. This trend adversely affects our freedoms as more and more federal crimes are passed. Since 2000, Congress has created at least 452 additional crimes. By 2007, the total number of federal crimes exceeded 4,450.

One experienced criminal attorney has stated:

…there are just too many federal crimes, many created by regulator fiat or otherwise without meaningful oversight by elected officials. [I am concerned] about how a great many of them are apparently drafted by people with no understanding of how criminal law works and why. About how, as a result, there are an insane number of federal crimes (all felonies, of course) that penalize without any mens rea requirement at all. The most innocent accident, the most harmless and unintentional error, can make any honest and decent citizen a felon.

The growing trend to permit crimes without establishing mens rea opens the door to a tyrannical government. One can envision a situation in which a particular bureaucrat develops a negative animus against a citizen and then charges him with violation of numerous regulations imposing criminal penalties. There are circumstances in which the person did not have any idea he was doing anything wrong. It is one thing to assess a person civil damages for harm to the public occasioned by his actions, but it is another thing to label him a criminal, imprint that upon his public record, and make him the scourge of society when he did not know he was doing anything wrong.

The concept of mensrea has received its fair share of attention from legal scholars. Some have said that mens rea contains two factors: an actual harm (a social disvalue) and the mental state of the actor who commits the harm. These scholars disagree on whether the harmful act need imply immorality and whether a harmful act committed with laudable motives could be a crime. Oliver Wendell Holmes said, “It is quite futile to seek to discover the meaning of mens rea by any common principle of universal application….” Since motive has no easy definition, its involvement in mens rea prevents formulation of a common principle essential to legality.

The courts will be challenged by this amendment as they attempt to formulate the mental elements essential to crimes and the requirement of “guilt”. However, attention to this concept by the federal government is essential to our freedom. The States may depart from the standard subject to limitations of the Constitution.

It is not above the government to avoid the mens rea requirement. Thus, there are some cases where, for example, a federal prosecutor has argued that he did not have to prove “knowingly” when the person was charged with illegal “acquires” where the crime was “knowingly uses, transfers, acquires, alters, or possesses…[an illegal drug].” The reason: The term “knowingly” applied only to the term “uses” and not to other terms. The mere fact that the government would make such an argument establishes its proclivity to seek recognition for convictions regardless of the justice thereof. Today, where a criminal statute is silent as to mens rea, the courts will require proof of general intent (“general intent” means you knew you were committing the act complained of even though you did not know it was wrong to do so). The courts will enforce a criminal statute without mens rea if Congress so requires.

In the interest of protecting the freedom of individuals, we deem it important that mens rea be required as an element of proof in any federal crime.

36.4 No Severance Clause

Summary:

If any part of a Bill that becomes Law is determined to be unconstitutional, then the whole Law shall be unconstitutional.

Proposed Language:

If any part of a Bill which becomes Law is determined to be unconstitutional, the whole Law shall be unconstitutional.

Commentary:

It is common practice for both lawyers and legislatures to put a “savings clause” in contracts and statutes to the effect that if any portion of the document is determined to be invalid, then the balance of the document shall continue to be valid. The result is that courts are left to enforce the document, even though some portion of it was determined to be invalid. This, in turn, causes one to wonder whether the document would ever have been approved in the first instance if the portion that was later established to be invalid had not earlier been included. Of course, this practice obscures what the real intention of the parties was.

In order to promote and encourage responsibility in the drafting and approval of legislation, we believe the law should be that, if any portion of the legislation is later determined to be unconstitutional, the entire legislation shall be deemed invalid. This requires that Congress act responsibly and not clutter its legislation with risky features. These features should be included in separate legislation or separate laws.

Many will be reminded of certain discussion regarding the Affordable Care Act related to, whether the entire law is unconstitutional if the individual mandate portion is unconstitutional. This is an issue the Supreme Court will have to deal with if it rules that the individual mandate is unconstitutional.

Overall, we believe this proposed amendment will make Congress more responsible and diligent in passing laws and will eliminate the inclusion in otherwise worthy legislation of provisions that, if found to be invalid, would invalidate the entire legislation.

36.5 State Legislatures Elect U.S. Senators

Summary:

The Seventeenth Amendment to the Constitution requiring the direct election of Senators shall be repealed.

Proposed Language:

The Seventeenth Amendment to the Constitution is repealed.

Commentary:

The Constitution as originally established provided that “The sum of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years, and each Senator shall have one vote.” In 1913 the Seventeenth Amendment was adopted to provide for the direct election of Senators by the People. The result was that the States lost their influence over national policy, became similar to bureaucratic agencies so far as the Congress was concerned, and provided a platform for U.S. Senators to spend their time trying to become the President.

Unfortunately, fraud and corruption in state legislatures at the turn of the twentieth century gave rise to the progressive era which presumed that the People were better qualified to decide on who their U.S. Senators should be than their legislators. The result was the Seventeenth Amendment which was passed in 1913. Over the years, persons elected to the U.S. Senate came to envision themselves as future presidents and rarely consulted their state legislatures with respect to material legislation.

Repeal of the Seventeenth Amendment will increase the power of State legislatures, enhance the accountability of the federal government, improve the quality of leaders in the United States Senate, and allow State leaders to contribute to national policy.

The advantage of returning to the original constitutional intent would be to energize State legislatures and the members thereof, minimize campaigns for the U. S. Senate, minimize the cost of campaigns for the U. S. Senate, familiarize State legislatures with federal issues during the campaign of different persons to seek election from those legislatures, provide incentive to voters to pay more attention to who their State legislators are, and generate persons who will be recognized for their leadership and soundness of policy rather than their rhetoric and media appeal.

36.6 Limit Congressional Power

Summary:

The “general Welfare” clause as used in the preamble of the Constitution does not grant Congress any power and as used in Article I § 8 grants power exercisable only by at least a two thirds-vote of both Houses.

Proposed Language:

The “general Welfare” as used in the Preamble of the Constitution refers to the whole of the American people and does not grant Congress any power with respect to any class of People. Congress shall have no discretionary power to spend money in aid of the “general Welfare” as used in Article I § 8 cl. 1 of the Constitution pursuant to a power not expressly enumerated in the Constitution, unless its action is approved by a two-thirds vote of both Houses.

Commentary:

The term “general Welfare” is used in Article I § 8 cl. 1, which states, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;….” In U.S. v. Butler, 297 U.S. 1 (Jan. 6, 1936), the Supreme Court ruled that the “general Welfare” clause as so used gave the Congress more powers than were expressly enumerated in the Constitution. In Helvering v. Davis, 301 U.S. 619 (1937), the Supreme Court said:

Congress may spend money in aid of the "general welfare." Constitution, Art. I, section 8; United States v. Butler, 297 U. S. 1 (1936) …. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground, or certainly a penumbra, in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law. "When such a contention comes here, we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress." [citations omitted] Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation.What is critical or urgent changes with the times.

The purge of nation-wide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided….

While the decision in U.S. v. Butler was a loss to the strict constructionists, we believe it is unwise to trust a divided Congress with discretion over which specific programs are deemed to be for the common benefit or general welfare of the nation. To insure that discretion is exercised with as much unanimity as is reasonable, we have recommended a two thirds vote.

The desire to find more power in Congress than was intended by the Founding Fathers is illustrated by efforts to interpret the “general Welfare” clause in the Preamble of the Constitution as providing such power. The Preamble of the Constitution states, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” In Carter v. Carter Coal Co., 298 U.S. 238 (May 18, 1936), four motions after the Butler decision, the Supreme Court held that the “general Welfare” clause in the Preamble made no grant of authority to Congress to legislate substantively for the general welfare “and no such authority exists, save as the general welfare may be promoted by the exercise of the powers which are granted.” The court also noted that the contrary position “often advanced and as often discredited” had no merit.

We believe a different court at a different time might change its interpretation of the Constitution. To ensure that this does not happen, we believe it needs to be made clear that the “often advanced” argument that the “general Welfare” clause in the Preamble confers power on Congress can never be accepted. We have reason for this concern based on what the Supreme Court did with the “general Welfare” clause in Article I of the Constitution.

36.7 Limit Executive Privilege

Summary:

Doubts as to whether the President can lawfully assert executive privilege on any matter to avoid releasing information to Congress shall be resolved against the President.

Proposed Language:

Doubts as to whether the President can lawfully assert executive privilege on any matter to avoid releasing information to Congress shall be resolved against the President.

Commentary:

Clashes between the President and Congress are expected and have occurred frequently over the years when the President chooses not to release information that Congress would like released either to manage the country better or to embarrass the President. Any President with knowledge of this Amendment would likely think twice about doing things that he would not want to be disclosed.

The availability of information is critical to the proper operation of a democracy. This Amendment generally provides the courts with guidance in dealing with any issues that might be litigated to provide that, if there is a doubt as to whether the President has an executive privilege, the doubt shall be resolved against the President. In other words, in doubtful situations involving executive privilege, the President must disclose information.